Wednesday, 31 December 2014

The issue of the free movement of
EU citizens, as well as immigration and asylum from non-EU countries, has in
recent years become one of the most contested issues in EU law. This blog post reviews
the large number of legal developments over the last year in these two fields, assessing
firstly the controversies over EU citizens’ free movement rights and secondly the
tensions in EU immigration and asylum law between immigration control and human
rights and between national and EU powers. It’s the second in a series of blog
posts reviewing aspects of EU law in the last year; the first in the series (on
criminal law) can be found here.

Free Movement Law

The case law of the CJEU on EU
citizens’ free movement in 2014 was dominated by the themes of the limits to
economic migration and equal treatment, in conjunction with EU citizens’ right
to family reunion. On the first point, the most prominent judgment of 2014 was
the Dano ruling (discussed here),
in which the CJEU took a more stringent approach than usual in ruling that an
EU citizen who had not worked or looked for work had no right to insist upon a
social assistance benefit in the Member State that she had moved to.

As for the basic ruleson qualification
for EU free movement rights, the CJEU was not asked to rule in 2014 on the
definition of EU citizenship. However, a pending case in the UK Supreme Court
(discussed here) raises important questions about the extent of EU rules
on the loss of national (and therefore EU) citizenship. The acquisition of EU
citizenship also proved controversial, in the context of Malta’s sale of
national (and EU) citizenship (discussed here).

Furthermore, EU free movement
rights usually only apply to those who have moved between Member States. In two
linked judgments this spring (discussed here), the CJEU clarified some
important exceptions to that rule, as regards EU citizens who have moved to
another country to be with their family members and returned, or who are
cross-border workers or service providers. Next year, the CJEU will further
clarify another important exception to that rule: the Ruiz Zambranoscenario when the non-EU parent of an EU
citizen child is expelled to a third country, and the EU child has to follow,
resulting in a de facto loss of their EU citizenship. The CS and Rendon Marin
cases both ask the Court whether that case law applies to cases where the
non-EU parent has been expelled following a criminal conviction.

For those EU citizens who do move
between Member States, the CJEU delivered an important judgment in the case of Saint-Prix (discussed here),
extending the concept of ‘former workers’ beyond the categories listed in the
EU’s citizens Directive, to include also (under certain conditions)
cases of pregnant women who gave up their jobs before the baby’s birth.

This judgment concerned the
continued access to equal treatment
in welfare benefits which former workers enjoy. Indeed, a new Directive on
workers’ equal treatment (discussed here) was adopted in 2014, aiming to
ensure the effective implementation of such equal treatment rights in practice.
Next year, the CJEU will be called upon in the Alimanovic case to clarify whether the limits on EU
citizens’ access to benefits set out in Dano
also impact upon work-seekers, who have previously had limited access to
benefits linked to labour market access. The Court will also soon rule on
students’ access to benefits again in the case of Martens, where there has already been an Advocate-General’s
opinion.

The issue of EU citizens’ right
to family reunion was repeatedly addressed throughout the year, with the CJEU
taking a consistently liberal view. It ruled for a generous interpretation of
‘dependent’ family members in Reyes
(discussed here), and confirmed that separated spouses can still qualify
for permanent resident status in Ogierakhi
(discussed here). It also ruled in McCarthy
(discussed here) that non-EU family members of EU citizens could not be
subject to a ‘family permit’ requirement to visit the UK, but rather had to be
exempt from the need to obtain a visa if they hold a residence card in the
country which they live in. This judgment clarified that Member States could only claim that EU citizens were abusing free movement rights in individual cases. On this topic, the Commission produced a Handbook on the issue of 'marriages of convenience' (discussed here). Next year, the Court will be called upon to clarify
the application of EU law to divorces (Singh),
and for the first time, to same-sex relationships (Cocaj).

Finally, as regards the issue of
derogations, the Court took a less generous view of cases involving criminal
convictions, ruling in Gand Onuekwere that time spent in prison
in the host State did not count toward obtaining permanent residence status or
the extra protection against expulsion that comes with ten years’ residence.

Of course, the benefits of EU
free movement law are not uncontested. Throughout the year, the debate on the
merits of these rules in the UK intensified, to the point where Prime Minister
David Cameron insisted that there had to be a major renegotiation of these
rules as a key feature in the renegotiation of the UK’s membership of the EU.
As I pointed out at the time (see discussion here), many of his demands
will be difficult to agree, as they would require Treaty amendment.

Immigration and Asylum
law

There were important developments
in all four areas of EU immigration and asylum law in 2014: visas and border
controls; irregular migration; legal migration; and asylum.

Visa and borders

In the area of border controls,
the EU adopted new legislation on maritime surveillance in the spring
(discussed here), following a judgment of the CJEU invalidating the prior
Council implementing measure on the same subject. This Regulation contains
rules on search and rescue, as well as maritime surveillance and the
accountability of Frontex, the EU’s border agency. But it does nothing to
ensure the accountability of Member States for cases of ‘push-backs’ (illegal
return to the country of origin from the high seas) where Frontex is not
involved. Nor does it address illegal refusal of entry for asylum-seekers at
the external land borders, as in the case of recent Spanish legislation
applying to its North African enclaves.

To be fair, in recent years there
have undoubtedly been far more cases of national operations which save
migrants’ lives, in particular the Italian Mare Nostrum operation of 2013-14.
However, that operation was wound down starting in autumn 2014, and replaced by
a much more modest EU-led Operation Triton. It’s possible that more migrants
will drown in the Mediterranean as a result.

The EU prefers to focus instead
on ever-increasing controls at the external borders. But the negotiations on
the EU’s smart borders proposals dragged on throughout 2014, with no
agreement on the relevant rules likely before 2016. As for CJEU case law, the
important Air Baltic judgment
confirmed (following the 2013 judgment in Koushkaki,
regarding the visa code) that EU rules on entry at the external borders are
exhaustive, leaving no residual discretion to Member States. The Court’s other
judgment in this field, on the EU’s passports regulation (the so-called Doktor U case), copied the EU
legislature’s usual approach of prioritising border controls over individual
rights (in this case, the right to present one’s own name in a passport).

In the area of visas, new legislation
waived visa requirements for Moldova and then for a list of other countries (Peru, Ecuador, the United Arab Emirates, many tropical island
States), subject (for most of these countries) to the negotiation of visa waiver treaties
with the countries concerned. Treaties on visa facilitation with Armenia,
Azerbaijan and Cape Verde entered into force, and the EU and Turkey began
discussions on a visa waiver process.Furthermore, the Commission proposed legislation to establish a
new ‘touring visa’, and to overhaul the EU’s visa code, in order to encourage
tourism and other legitimate travel (including new rules on Schengen visas for
EU citizens’ non-EU family members, discussed here). Overall, the
long-term trend of gradual liberalisation of the EU’s visa policy continued in
2014.

Irregular migration

The main focus in this field was
the EU’s Returns Directive, with its detailed rules on many aspects of
the expulsion process. Interestingly, while the CJEU’s case law prior to 2014
had focussed on the grounds for immigration detention (with the exception of
the 2013 Filev and Osmani
judgment, concerning entry bans), the case law this year was far more diverse.
In the Mukarubega andBoujlida judgments (discussed here),
the CJEU elaborated on the right to be heard in the administrative phase,
before an expulsion order was issued to an irregular migrant.The Court ruled that such a right existed
even without an express mention in the Directive, although it then proceeded to
limit the actual content of that right considerably.

Conversely, the Directive does
contain some basic rules on judicial review of detention, and the CJEU
interpreted these for the first time in the Mahdi
judgment (discussed here). In particular, the CJEU enhanced judicial
control over extension of the detention period, but did not clearly answer
questions concerning review of the grounds for detention, notably the issue of
whether there was a ‘risk of absconding’ purely because a person lacked an
identity document.

The CJEU also gave its first
ruling on judicial review of removal orders, in the Abdida case (discussed here). It insisted that legal
challenges to removal had to have suspensive effect, where the irregular
migrant alleged a serious risk to his or her health would result from return to
the country of origin. Also, for the first time this judgment addressed the
living standards of irregular migrants pending removal (in this case, Mr.
Abdida was entitled to basic social assistance, despite the absence of rules on
this issue in the Directive). It also confirmed that the list of issues which
Member States had to take into account when applying the Directive, including
‘non-refoulement’ (among other grounds), could constitute a reason for
non-removal, and took a liberal view of the interpretation of
‘non-refoulement’. In effect, the CJEU ruled that in some cases, the Directive
could form the basis of a claim for a form of protection. But in the parallel
case of M’Bodj (discussed below) it
ruled that such cases did not fall within the scope of EU rules on asylum, and
in the Mahdi judgment it ruled that in
the ordinary case, irregular migrants who could not be removed gained no
particular rights from the Returns Directive, in effect being left in limbo.

Next, the CJEU broke more
important new ground in the cases of Bero
and others (discussed here), for the first time ruling on detention
conditions. It significantly limited the circumstances in which Member States
could detain irregular migrants in prisons, rather than specialised detention
centres.

Further important questions are
pending before the CJEU. Next year, the Court will rule on the extent of Member
States’ power to establish more favourable conditions for irregular migrants,
by issuing them with fines instead of expelling them (Zaizoune).It will also
clarify the extent of the Member States’ obligation to give irregular migrants
a period for voluntary departure (Zh and O). It will clarify whether the limits on the criminalisation of irregular
migrants, as established by prior case law, also apply to those who stayed
without authorisation (Celaj; the Court
passed up a chance to answer this point in the 2014 ruling in Da Silva). And it will clarify the
grounds for detention further, in particular interpreting when a ‘lack of
cooperation’ by an irregular migrant can justify a longer period of detention (Mehrabipari).

The Returns Directive also
received attention from the Commission and the European Migration Network in
2014. For its part, the Commission report (discussed here) offered some
indications of how Member States applied the Directive in practice, although
many details were missing.There were
further details of the practice regarding detention in particular in the
Network report (discussed here). Overall, there were signs that Member
States had increased their standards in some areas but lowered them in others.
But the Commission’s failure to bring any infringement actions against Member
States, or to issue guidance regarding the correct application of the
Directive, was disappointing.

There were developments regarding
other aspects of irregular migration in 2014. The Commission issued a report on
national application of the Directive prohibiting employment of irregular
migrants (discussed here), which indicated that Member States were
applying that Directive’s coercive rules enthusiastically, but failing to fully
apply its rules on protection of migrants’ rights. For its part, the CJEU confirmed that EU employment law applies to third-country nationals, including irregular migrants (see discussion here). Also, the Commission
reported for a second time on the application of the EU rules on the
immigration status of trafficking victims. Its report (discussed here)
indicates that Member States are still unwilling to issue many residence
permits to such victims, hindering the effective prosecution of cases.

Finally, the EU’s readmission treaties
with Turkey, Armenia, Azerbaijan and Cape Verde also entered into force in
2014. This completes the network of EU readmission treaties to the east and
south-east (with the exception of Belarus), and for the first time extends that
network to an African state. The CJEU also strengthened the EU’s powers to
include readmission clauses in development treaties (as discussed here),
presaging more readmission rules in future.

Legal Migration

After four years’ discussion, the
EU agreed new legislation on two aspects of labour migration in 2014, adopting
legislation on seasonal workers and intra-corporate transferees (the
latter directive is discussed here). There was also some progress on the
2013 proposal to amend the rules on students and researchers: the
European Parliament adopted its position in the spring, and the Council position
was agreed in December. Negotiations between the two branches of the EU
legislature will get underway in 2015, but are likely to be difficult due to
their radically different views (I’ll look at these positions in detail in a
future blog post).

The Commission also reported for
the first time on the EU’s flagship legislation on labour migration, the ‘Blue
Card’ Directive. The report (discussed here) indicated that Member
States were making great use of the many options in the Directive, diluting its
intended purpose to serve as a means to attract highly-skilled migrants to
settle in the EU. The new EU Commission intends to propose amendments to this
legislation (discussed here) to ensure that it is better able to
accomplish its goals.

The CJEU played a modest role in
the development of EU law on legal migration in 2014, ruling on issues relating
to family reunion, long-term residents and students. On family reunion, the
CJEU delivered a very disappointing judgment in Noorzai (discussed here) on the calculation of waiting
periods for spouses married before the age of 21, paying little account to its
prior case law on the need to protect family life and interpret exceptions from
the EU’s family reunion Directive narrowly. For the family members of Turkish
workers, though, the Court insisted in Dogan
(discussed here) on the application of a standstill clause, thereby
exempting them from being subject to the more restrictive rules introduced in
recent years – unless such rules could be justified on public policy grounds.
Next year, the Court is due to rule on the key question of the limits to the
imposition of integration conditions as a ground for family reunion (K and A case). The Commission
issued some useful (if very belated) guidance on the application of the family
reunion Directive (discussed here); it remains to be seen whether it
takes any action to enforce the law.

In other areas, the CJEU ruled in
Tahir that being a family
member of a long-term resident wasn’t enough to become a long-term resident in
one’s own right. The Court should rule next year on: when integration
conditions can be imposed on long-term residents (P and S; the Advocate-General’s opinion is due in January
already); on the scope of equal treatment for long-term residents (Van Hauthem), and on the extent of
fees which Member States can charge to get such status (CGIL).

Next, the Court ruled that Member
States have no residual discretion to create new conditions for the admission
of non-EU students, in the Ben Alaya
case (discussed here). This judgment arguably applies by analogy in
other areas of EU immigration law too.

Finally, the Court repeatedly
rejected arguments that the UK’s opt-out over immigration matters applied to
social security matters, in particular as regards Switzerland (discussed here)
and Turkey (I’ll come back to the latter case soon).

Asylum

The CJEU’s case law on the qualification directive (which governs the definition and content of refugee and subsidiary protection status) addressed a
number of issues. In A, B and C
(discussed here), it ruled out a variety of unpleasant methods of
assessing the credibility of LGBTI asylum-seekers, while oddly leaving it open
to Member States to ask questions based on stereotypes. In Diakite, it ruled that the EU rules on qualification for
subsidiary protection, on grounds that there is a risk of a serious threat to a
civilian in cases of ‘indiscriminate violence in situations of international or
internal armed conflict’, should not
be interpreted consistently with the similar provisions of international
humanitarian law. It also clarified another ground for subsidiary protection in
M’Bodj (discussed here),
ruling that protection on grounds of facing ‘torture or other inhuman or
degrading treatment’ did not apply where the person concerned would simply not
receive medical treatment in his or her country of origin. Furthermore, Member
States’ power to set ‘more favourable standards’ did not extend to permit them
to give subsidiary protection as an option
to such people. EU law could only apply in the context of the Returns Directive
(see the Abdida case, discussed
above). Early next year, the CJEU should give important rulings in the cases of
T (regarding terrorism) and Shepherd (regarding a US citizen
claiming asylum due to conscientious objection to the Iraq war); there is an
Advocate-General’s opinion in both cases already.

As for the reception conditions Directive, the CJEU delivered a liberal ruling
in Saciri (discussed here),
affirming asylum-seekers’ right to family housing on the basis of a very
generous interpretation of the Directive. In the area of asylum procedures, the Court clarified the relationship between
refugee and subsidiary protection status in the MM case (discussed here), and took a narrow view of the
application of data protection rules to the asylum process in Y and S (discussed here).

Finally, the CJEU did not rule on
the Dublin system on responsibility
for asylum claims in 2014, except to rule in the Qurbani case (discussed here) that it did not have jurisdiction to interpret Article 31 of the UN Refugee (Geneva) Convention on this context. But its approach was implicitly criticised by the
European Court of Human Rights (ECtHR) in the Tarakhel ruling (discussed here). The CJEU quickly reacted
with its quite bonkers judgment on the EU’s accession to the ECHR (discussed here),
insisting that its peculiar notion of naïve mutual trust in each Member States’
asylum system should prevail over any possibility that the other Court might
find a breach of human rights in individual cases. The Dublin system was also
the focus of the sole legislative proposal on asylum in 2014 (discussed here),
which sought to clarify the rules on unaccompanied minors.

Conclusions

In the area of free movement of
EU citizens, the CJEU has made significant gestures to its critics this year,
as regards the issue of ‘benefit tourism’ and on the limited legal rights of
those who have been convicted of crimes. But it continues to take a robust view
of equal treatment rights and of the definition and rights of EU citizens’
third-country family members, even in cases outside the traditional rules. If
David Cameron is in a position after next year’s UK general election to insist
upon renegotiation of the UK’s EU membership, this will be one of the key
political issues facing the EU.

In the area of immigration and
asylum, the tension between immigration control and human rights can be seen
particularly in the EU’s continued strengthening of its border controls despite
the large loss of life in the Mediterranean. It’s often suggested that a more
developed EU external policy on asylum could reduce the number of lives lost, but there are many legal and
political issues holding up such a resolution. This autumn, I attended a
seminar on these issues: there was a consensus among the high-level government
experts that an effective policy was simply not politically realistic.

Once non-EU citizens do reach the
EU’s territory, however, the CJEU’s relatively liberal interpretation of the legislation
on legal migration, asylum and even the Returns Directive means that they enjoy
more rights than the initial critics of much of this legislation thought would
be likely. Interestingly, the EU’s traditional economic objectives are being
increasingly used as justification for the adoption of more liberal rules on
visas and labour migration, not only by the EU legislature but also (in the Ben Alaya judgment) by the CJEU.

The Court’s rulings this year
have confirmed that EU law constrains Member States’ discretion in this field significantly,
not only establishing the exhaustive nature of the EU’s rules on border control
on admission of students, but also setting a ceiling as regards the definition of
refugee and subsidiary protection status and developing many new rules in the
context of the Returns Directive. But there is an interesting new development:
the CJEU has opened up a second front, defending EU rules also from any
significant influence by international law. This is evident in several areas: the
decoupling of the EU’s subsidiary protection rules from international
humanitarian law; the ‘channelling’ of the ECtHR jurisprudence on medical cases
into the Returns Directive instead of asylum law; the continued implicit snub
to international soft law (this year, as regards the UNCHR guidelines on
credibility assessment in LBGTI cases); and most obviously the CJEU’s barely
suppressed rage at the ECtHR’s mild criticism of the dysfunctional Dublin
regime. Time will tell what the effects of the Court’s hubris will be.

Tuesday, 30 December 2014

After a couple of years without
any (apparent) crisis, the future of Economic and Monetary Union (EMU) is
threatened again, following the decision to call snap Greek elections in
January. What would be the consequences if the anti-austerity party Syriza
becomes the government?

First of all, such an outcome is
not yet certain. As Open Europe’s analysis points out, Syriza has only a
modest lead in the polls, and even if it becomes the largest party, it may well
fall short of having a majority of seats, in which case it would have to form a
coalition with another party.

Secondly, it’s necessary to
realise that Syriza has, in principle, relatively modest ambitions. Its policy
is not to leave the EU or even the single currency, but rather to renegotiate Greece’s
debts and the related austerity obligations. Even in previous elections, it
sought to default on the debt, rather than leave the EU or EMU.

Having said that, it is possible that
Syriza might decide to threaten more decisive action if renegotiation does not
go well. Or that party’s more radical elements might take charge. Or, in the view of some (see this Washington Post commentary), Greece might be forced out of the euro by other Member
States, particularly Germany.

While the main issues arising
from this situation are political and economic, there are also legal
constraints that cannot be overlooked. Some key measures taken to save the euro
in recent years were litigated before national courts (particularly in Germany
and Ireland), as well as in the CJEU, notably the Pringle case (concerning the treaty establishing the European
Stabilisation Mechanism) and the pending Gauweiler
case (discussed here), concerning the European Central Bank policy of
buying government bonds. The Advocate-General’s opinion in the latter case is
due in mid-January – in the midst of the Greek election campaign.

Let’s start with the most radical
outcome. Every Member State has an option to leave the EU, set out in Article
50 TEU. It would be unwise to invoke that provision unless a Member State
genuinely wants to leave (see my earlier blog post on that provision). Conversely,
however, it’s entirely impossible to force a Member State out of the EU against
its will. The most that the other Member States can do is to suspend its membership
in the event of a ‘serious and persistent breach’ of EU values, in particular
human rights and democracy (Article 7 TEU).

What about departure from EMU?
The Treaties contain detailed rules on signing up to the euro, which apply to
every Member State except Denmark and the UK. Those countries have special
protocols giving them an opt-out from the obligation to join EMU that applies
to all other Member States. But there are no explicit rules whatsoever on a
Member State leaving the euro, either of its own volition or unwillingly, at
the behest of other Member States.There’s
an obvious reason for this: the drafters of the Maastricht Treaty wanted to
ensure that monetary union went ahead, and express rules on leaving EMU would
have destabilised it from the outset. Put simply, legally speaking, Greece can’t
jump or be pushed from the single
currency.

But other currency unions have
fallen apart in history, despite any legal prohibitions that may have existed
against it. So it’s important to consider also the practical constraints: it’s
not realistic to imagine forcing Greece to leave or to stay in EMU against its
will, short of invading and occupying the country. How would Greece be forced
out exactly? By printing drachmas in Frankfurt, dropping them from the air over
Greece and hoping that Greeks use them?

In the event that Greece did
choose to leave EMU in practice, EU law would have to be amended (probably with
retroactive effect) to regulate the position. Although there are no express
provisions on this issue, arguably Article 352 TFEU (the default power to
regulate issues not expressly mentioned in the Treaties) could be used. This would
require a unanimous vote of all Member States: it wouldn’t be possible to use
the EU’s ‘enhanced cooperation’ rules (allowing a group of Member States to go
ahead without the others), since those rules can’t be used where an issue falls
within the scope of the EU’s exclusive competence, and the single currency
falls within the scope of the exclusive competence over monetary policy. If
Article 352 was not legally possible (someone might bring a successful legal
challenge if it was used, or one or more Member States might have purely legal
objections), it would be necessary to amend the Treaties.

The least radical outcome is that
Greece’s debt and austerity obligations are simply renegotiated. But there are
legal constraints here too. Most significantly, Article 136(3) TFEU states that
any financial assistance must be subject to ‘strict conditionality’, consistent
with the CJEU ruling in Pringle. The
CJEU also made clear in that judgment that the ‘no-bailout’ rule in the EU
Treaties (Article 125 TFEU) allowed Member States to offer each other financial
assistance on the condition that it took the form of loans, rather than a direct
assumption of Greek government debt by other Member States. Moreover, the CJEU
pointed out, the ESM Treaty required that in the event of non-payment, the
loans would remain payable, and had to be charged an appropriate level of
interest.

So it’s not possible for Member
States to drop all conditionality as regards loans to Greece, to forgive debt
as such or to loan money interest-free. But it is open in principle to reduce
the stringency of the conditions somewhat, to reduce the interest rates payable
and to lengthen the repayment period – although there is always the risk that
some litigant will try to convince a national court or the CJEU that this is
going too far. Moreover, the rules in the EU Treaties only bind EU institutions
and Member States, not private parties, third States or international organisations
(although it might be argued that Member States are constrained as members of
the IMF not to violate the no-bailout rule indirectly). So any renegotiation or
default as regards such creditors is not subject to EU law rules in principle,
although of course other legal rules might be applicable.

Whether such fairly modest
renegotiation would do enough to reduce Greece’s mountain of debt significantly,
or to satisfy the voters which supported a Syriza-led government, remains to be
seen. The greater impact may be longer-term, in the event that a Podemos-led government
comes to power in Spain, or that new or current governments in other Member
States which have been bailed out demand a similar renegotiation.

Finally, it should be recalled
that renegotiation of loans might not be the only possibility to help out Greece.
For example, arguably the Treaties do not rule out a form of (supplementary)
unemployment insurance system as between Eurozone Member States, since it would
not take the form of paying off another State’s debts as such. Admittedly, such
a system would provide indirect financial support to another State, since it would
reduce costs which that Member State might otherwise have. But the same might
be said of loaning money to that Member State, at interest rates far lower than
it would be offered on the free market, via means of the ESM Treaty – and the CJEU
has already found that this didn’t violate the no-bailout rule. Moreover, the
previous Commission has already done a lot of preparatory work on this
issue (see the fuller discussion here). Such a scheme could probably be launched either inside the EU legal framework,
or outside it.

It’s up to Greek citizens to
decide if they want to vote for Syriza or not, and the EU institutions and
other Member States should leave them alone to make their choice. But if Greeks
do decide to vote for that party, it would be tiresome and counter-productive
to react with bluster and threats. Why not take this opportunity to re-engage
with the millions of EU citizens who are affected or angered by austerity, and
re-orient the EU towards ending that austerity, instead of generating more of it?
That’s more easily said than done, of course. But an unemployment insurance
system would not only have an economic rationale (as an automatic stabiliser)
but also a political one, demonstrating that the EU can assist those who have suffered
from the economic downturn directly.

Monday, 29 December 2014

With the elections to the
European Parliament, the installation of a new European Commission, and a
number of important legislative and case-law developments, 2014 was an important
year for the European Union. This is the first in a series of blog posts
reviewing the year in selected fields of EU law.

The most significant change to EU
criminal law came on December 1, when the five-year transitional
period relating to EU criminal law measures adopted before the entry into force
of the Lisbon Treaty (‘pre-Lisbon EU criminal law measures’, also known in
practice as the ‘third pillar’) came to an end. From this date on, pre-Lisbon
EU criminal law measures are subject to the normal rules of EU law (except that
they maintain their previous limited legal effect, in particular the lack of
direct effect). More specifically, this change (discussed generally here)
has three main impacts.

Firstly, the UK was entitled to opt
out of all pre-Lisbon EU criminal law measures, and then apply to opt back in
to some of them again. The UK indeed exercised these possibilities, opting back
in to 35 such measures as of 1 December 2014 (see discussion of the details here),
following an unnecessarily convoluted process in the House of Commons
(discussed here). In a nutshell, since the UK has opted back into a
large majority of the pre-Lisbon measures which have any significant importance,
the whole process has had barely reduced the UK’s actual degree of
participation in EU criminal law.

Secondly, the end of the
transitional period means that the EU Commission can now bring infringement
actions against Member States that failed to correctly implement pre-Lisbon EU criminal
law measures - or that failed to implement such measures at all. The relevance
of this is obvious in light of the Commission reports issued this year,
regarding: legislation on the transfer of prisoners, probation and parole and
supervision orders (discussed here); hate crime and Holocaust denial (discussed here);
and conflicts of jurisdiction and the recognition of prior convictions (discussed
here).

Thirdly, all courts in all Member
States can now send references to the CJEU on the interpretation pre-Lisbon EU
criminal law. For the EU as a whole, the impact of this change will probably be
limited in practice, because (a) two-thirds of Member States allowed such references
anyway, and (b) there were no such limits regarding EU criminal law adopted after the entry into force of the Lisbon
Treaty. On the former point, the CJEU decided two cases this spring on the EU’s
double jeopardy rules (discussed here), in which it finally developed
the relationship between those rules and the double jeopardy provisions of the
ECHR and the EU Charter of Fundamental Rights. A final reference to the CJEU on
the basis of the old rules, sent just a month before the end of the
transitional period (Kossowski),
now asks the Court to clarify whether Member States’ derogations from the
Schengen rules violate the EU Charter.

On the second point, the first
reference from national courts on post-Lisbon
EU criminal law was referred this year: the Covaci
case, on the Directive on interpretation and translation in criminal law
proceedings and the Directive on the ‘letter of rights’. So far, there is no sign of the predicted avalanche of cases on EU
suspects’ rights legislation (the deadline to apply the letter of rights Directive passed in June). Of course, there
could still be an increase of such cases in future, perhaps after the 2016 deadline
to apply the third suspects’ rights Directive (on access to a lawyer).
And in the meantime, Member States must apply the victims’ rights Directive
towards the end of 2015. Hopefully the CJEU’s case law on that measure will be
more convincing than its ruling earlier this year (criticised here) on
the scope of the Directive on compensation for crime victims.

Another important CJEU judgment
in the criminal law field this year (discussed here) ruled that policing
information measure actually fell within the scope of EU transport law. The
immediate impact of this judgment was a rush to adopt replacement legislation
(the text of which is already agreed), which will apply to all Member
States (the UK, Ireland and Denmark had opted out of the prior measure). More
broadly, the judgment shows that the CJEU is not inclined to interpret the EU’s
criminal law powers broadly – at least as compared to the EU’s other powers.

The end of the transitional period
did not lead to a general review of pre-Lisbon EU criminal law measures, with
the Commission proposing only a very limited repeal of some obsolete measures
(I’ll blog on these proposals in the new year). In particular, the new Justice
Commissioner appears to have no significant agenda to suggest criminal law proposals,
whether to amend prior measures or to adopt new ones (for an argument as to
what the Commission should do, see here).

However, some of the pre-Lisbon criminal
law measures have been amended or replaced, or will be amended or replaced by
proposed legislation now under discussion. In particular, during 2014, the EU
adopted legislation concerning: the European Investigation Order (discussed here);
the counterfeiting of the euro (discussed here); the confiscation
of criminal assets; and the European Police College (moving its seat
from the UK to Hungary). The EU also adopted legislation on criminal sanctions
for market abuse (discussed here).

There are also proposals under
discussion to replace pre-Lisbon EU criminal law measures concerning: fraud
against the EU (see the state of play here); the police agency, Europol
(see discussion of negotiations here); the prosecutors’ agency, Eurojust
(there was a partial agreement on this proposal); and data protection in
criminal law cases (see the state of play here). The latter issue is
increasingly important, as indicated by the related CJEU judgment invalidating
the data retention directive (discussed here), which gave rise to
questions as to whether Member States could adopt or retain their own data
retention laws (on this point, see generally here, and here as
regards the UK in particular).

In fact, the CJEU will soon be
ruling on data protection and criminal law issues as such, since the European
Parliament has asked it to rule on the validity of the EU/Canada draft treaty
on passenger name records (see discussion here). The pending Europe v Facebook case (discussed here)
raises questions about the impact of the Snowden revelations upon the EU and US
arrangements on data protection. In the meantime, the proposed Directive
on passenger name records still remains on ice (having been put there by the
European Parliament), with EU leaders’ attempt to set a deadline to adopt this
proposal by the end of 2014 proving futile.

Other proposals are also under
discussion: a more general overhaul of the European Police College;the
creation of a European Public Prosecutors’ Office (see the state of play here); and the adoption of three more suspects’ rights measures, concerning
child suspects (agreed by the Council), presumption of innocence (also agreed
by the Council) and legal aid (see the state of play here). However, the
Commission’s proposal for new rules relating to the EU’s anti-fraud
body, OLAF, soon melted in the heat of Council opposition.

Conclusion

Taken as a whole, the year 2014
showed how the European Parliament, the CJEU and the Commission are already
playing a significant role in the development of EU criminal law. Following the
final demise of the third pillar, the year 2015 is likely to see further
important developments in this area, which will make the pre-Lisbon measures even
less important: the adoption of new legislation on Europol, the European Police
College and possibly Eurojust, as well as revised legislation on fraud against
the EU budget. There will likely be two or three further Directives on suspects’
rights and the victims’ rights Directive will begin to apply. The rules on the
new European Public Prosecutors’ Office might also be agreed, and there could
be significant developments in the area of data protection. Overall, the longer-term
trends toward greater parliamentary and judicial control and greater focus on
individual rights in this area accelerated significantly in 2014 and could well
do so again next year.

Sunday, 21 December 2014

Many readers may already be
familiar with Colin Yeo’s brilliant blog post, imagining Paddington
Bear’s unpleasant encounter with British immigration law. But could EU law save
Paddington Bear, in particular by creating a new form of protection for those
who have to flee their country of origin?

Background

EU law has regulated in detail
two forms of international protection: refugee status (based on the UN’s Geneva
Convention) and subsidiary protection status, for those who don’t qualify for
refugee status. (There’s also EU legislation providing for temporary protection, but the EU has never used it). But there are people who don’t
qualify for either form of status. When do they have a right to stay?

This question is relevant in a
number of cases. For instance, Paddington Bear could argue that he was an
‘environmental refugee’, fleeing catastrophic events in his country of origin
that were not caused by humans (or even bears). (I’m converting Paddington into
a human for the purpose of this blog post, just as Colin does in his). Others
might lack a right to stay, but can’t be removed for practical reasons, for
instance because they don’t have documents that prove their nationality, and so
the country which they probably come from refuses to accept them back. Or they
have a serious illness, but the developing country which they come from lacks
the resources to treat it: so sending them back would, in practice, amount to a
death sentence.

It’s the last of these scenarios
which forms the subject of the CJEU’s two recent rulings in M’Bodjand Abdida. (Note that these judgments should be read in that
order, and it would be highly misleading to read one but not the other).
However, these judgments might well have implications for other groups of
people as well – perhaps including even our marmalade-loving bear.

Judgments

In the M’Bodj case, a non-EU citizen, having failed in his requests for
asylum and stay on medical grounds in Belgium, was then the victim of a violent
attack there. So he requested a disability allowance that was only available,
on the facts of his case, if he could show that he was eligible for subsidiary
protection. According to the EU’s qualification Directive, subsidiary
protection must be granted if the applicant is facing any one of the following
three situations: (a) the ‘death penalty or execution’; (b) ‘torture or other
inhuman or degrading treatment or punishment of an applicant in the country of
origin’; or (c) ‘serious and individual threat to a civilian’s life or person
by reason of indiscriminate violence in situations of international or internal
armed conflict’. (The EU has more recently adopted a revised qualification Directive, but it didn’t change this particular definition).

The CJEU has previously
interpreted the third of these grounds, in its judgments in Elgafajiand Diakite. But it has not yet interpreted the first two
grounds. Mr. M’Bodj argued that the second ground applies, on the basis that
the European Court of Human Rights (ECtHR) has interpreted Article 3 ECHR,
which equally bans ‘torture or other inhuman or degrading treatment or
punishment’, to mean that, in exceptional cases, people who would die if they
were sent back to their country of origin, due to the inadequate medical
treatment there, cannot be sent back.

However, the CJEU rejected its
arguments. In its view, since the qualification Directive listed specific human
activities as the source of
persecution or serious harm, this form of ‘serious harm’ had to be the result
of ‘a form of conduct on behalf of a third party’, so ‘cannot therefore simply
be the result of general shortcomings in the health system of the country of
origin’. This interpretation was bolstered by the preamble to the Directive,
which says in effect that the Directive does not apply to those allowed to stay
‘on a discretionary basis on compassionate or humanitarian grounds’. It did
make an exception for cases where the person concerned had been intentionally
deprived of health care. Just because the ECtHR interpreted Article 3 ECHR to
mean that people in Mr. M’Bodj’s situation could not be removed to their
country of origin, that did not mean that they were necessarily entitled to subsidiary
protection under the EU Directive.

The Directive does state that
Member States can have ‘more favourable standards’ as regards qualifying for
refugee or subsidiary protection status than those set out in the Directive.
But such higher standards have to be ‘compatible’ with the Directive. In the
Court’s view, it would indeed be incompatible with the Directive to give
subsidiary protection status to Mr. M’Bodj, since there would be ‘no connection
with the rationale of international protection’.

Read in isolation, the M’Bodj case means that those facing
awful conditions in their country of origin that were not caused by humans have no right to refugee or subsidiary
protection status. Their legal position is governed only by the ban on removal
to their country of origin, set out in ECtHR case law, along with whatever
limited benefits they may have under purely national law. There are a wide
variety of such national law rules, as documented in a study for the
European Migration Network. For Paddington Bear, this would mean that he could be
sent back to his country of origin, unless the conditions there breached
Article 3 ECHR standards. In that case, he could remain in the UK, but probably
could not expect a very nice life.

However, the Abdida case, decided on the same day by the CJEU, suggests that in
some cases, those who are unable to qualify for subsidiary protection or
refugee status can use the EU’s Returns Directive to obtain a different
type of protection. Mr. Abdida had similarly claimed that he should receive
leave to remain on medical grounds in Belgium, and was appealing against the refusal
of this application. While the appeal was pending, he was refused social
assistance, on the grounds that it was only available to those whose challenge
to their removal had suspensive effect; his challenge did not have that effect
under Belgian law.

The national court asked the CJEU
to interpret EU asylum legislation, and in light of its judgment in M’Bodj, the CJEU simply said that EU
asylum law did not apply. While Member States have an option to apply EU
legislation on reception conditions and asylum procedures to
other types of applications for protection, Belgium has not chosen to do so.

The CJEU could have left the case
there, but it didn’t. Instead, it decided to give the national court a detailed
answer to questions it had never asked, on the interpretation of EU legislation
that it had never referred to – the Returns Directive, which governs the
process of removing irregular migrants from the territory.

First, the Court ruled on Mr.
Abdida’s procedural rights. While the Returns Directive does not require legal
challenges to removal to have suspensive effect, it was necessary to consider
the impact of the EU Charter of Rights, Article 19(2) of which bans removals to
States where the person concerned would face a serious risk of inhuman or degrading
treatment. This had to be interpreted in light of the ECtHR case law on Article
3 ECHR discussed above, which bans removals on ‘medical grounds’ in exceptional
cases.

How does this impact the
interpretation of the Returns Directive? Article 5 of that Directive says that
when they implement the Directive, ‘Member States shall take due account of:
(a) the best interests of the child; (b) family life; (c) the state of health
of the [person] concerned, and respect the principle of non-refoulement’. The
CJEU ruled that Article 5, ‘taken in conjunction with Article 19(2) of the Charter’,
means that Member States ‘may not…proceed with…removal’ where removal ‘would infringe
the principle of non-refoulement’ on medical grounds.

This ban on removal had the consequential
effect that the remedy against removal had
to be suspensive, despite the optional wording of the Directive on this point, because
otherwise Mr. Abdida could suffer irreparable harm if sent back to his country of
origin before his appeal was decided.

Secondly, the CJEU ruled on his
social rights. Article 14 of the Directive says that except where irregular
migrants are in detention, where they are given a time for voluntary departure or
their removal is postponed, Member States must ‘ensure that the following
principles are taken into account as far as possible…: (a) family unity with
family members present in their territory is maintained; (b) emergency health
care and essential treatment of illness are provided; (c) minors are granted
access to the basic education system subject to the length of their stay; and
(d) special needs of vulnerable persons are taken into account’.

In the Court’s view, Mr. Abdida
qualified for this treatment because his removal had to be postponed under the
Directive, which requires postponement where suspensive effect of an appeal has
been granted. Oddly, the Court did not mention that the Directive also requires
postponement where removal would violate the principle of non-refoulement,
although this rule was obviously relevant to Mr. Abdida as well.

It should be noted that the
Directive gives an option to Member
States to postpone removal in other cases, too. On that point it specifies that
‘Member States shall in particular take into account: (a) the third-country
national’s physical state or mental capacity;’ and ‘(b) technical reasons, such
as lack of transport capacity, or failure of the removal due to lack of
identification’. In these cases, the persons concerned could also invoke the safeguards
set out in Article 14, since that clause applies regardless of the reasons for
postponement of removal.

Yet on the face of it, Mr. Abdida’s
specific claim for social assistance
could not be successful, since such assistance is not mentioned in Article 14
at all. Indeed, the preamble to the Directive states that pending return, the ‘basic
conditions of subsistence should be defined according
to national legislation’. But the CJEU ruled that such legislation still
had to be ‘compatible with the requirements laid down in’ the Directive. In
this case, the right to the provision of health care would be ‘rendered
meaningless if there were not also a concomitant requirement to make provision
for the basic needs’ of the person concerned. However, that right only had to
be provided ‘as far as possible’, on the condition that the person lacked the
means to provide for his own needs; and it was up to Member States to ‘to
determine the form’ which the provision of basic needs took.

Comments

At the outset, it should be noted
that the qualification Directive and the Returns Directive have a different
territorial scope. The former applies to all Member States except Denmark, but
including the UK and Ireland. The latter doesn’t apply to the UK and Ireland,
and it applies to Denmark and the non-EU Schengen associates (Norway, Iceland,
Switzerland and Liechtenstein) only in certain cases.

So, in light of this recent CJEU
case law, my advice to Paddington Bear would be to take the tube a few stops
from Paddington to King’s Cross & St. Pancras station, and stow away again, this time on a Eurostar train to
Brussels. (My apologies for facilitating a breach of immigration law, thereby
infringing the EU’s Directive on that subject. And even greater
apologies for inflicting upon the world the consequential change of name: it
will be much harder to love ‘Gare du Midi Bear’.) Or alternatively, he could
stow away on a train to Disneyland Paris – and create work for an army of
copyright lawyers.

The Court’s judgments raise questions
about the scope of international protection as defined by the qualification
Directive, and about the new possibilities of protection arising under the
Returns Directive. For the sake of brevity, let’s call that latter concept ‘alternative
protection’ (technically, we should probably call it ‘Returns Directive
protection’, but I can’t bring myself to use that term).

First of all then, the
qualification Directive. The central point here is that there is no right to
subsidiary protection merely due to the lack of decent health care in the
country of origin, unless access to that health care has been blocked. The
Court does not expand further on that exception, but presumably a parallel
argument could be made for refugee status, where access to essential health
care is blocked on one of the grounds (such as race, religion or political
opinion) set out in the Geneva Convention, since that would surely constitute a
form of persecution.

More broadly, the Court rules out
a subsidiary protection claim unless the conditions in the country of origin
have been caused by a ‘third party’ as defined in the Directive (namely the
State, persons or groups controlling the State, or non-State actors). While the
Court didn’t rule on this point as such, the logic of its judgment suggests
that ‘non-State actors’ have to be humans. Also, it’s implicit that indirect causation
isn’t sufficient. It could certainly be argued that the lack of sufficient health
care in developing countries is ultimately the fault of corrupt dictators and
elites who hoard those countries’ wealth, and/or the legacy of (neo-)colonialism
and slavery. Equally, many believe that environmental displacement results from
climate change caused by human activity. But it seems unlikely that the CJEU
would accept this line of argument.

Furthermore, the Court has ruled
out Member States using their power to apply more favourable rules for
international protection in such cases. The CJEU had only ruled once before on
this issue, in the case of B and D,
when it ruled that States could not grant refugee status to persons who were
excluded from that status. It was possible to interpret that judgment as
meaning that Member States were only constrained from granting more favourable
treatment when international law required
them not to do so. But the M’Bodj judgment goes much further than
this. So the CJEU hasn’t just refused to raise the floor for international
protection – it’s significantly lowered the ceiling.

It should be noted that the requirement
that more favourable standards be compatible with EU law applies in all other
EU asylum laws, as well as in some EU migration legislation, such as the
Returns Directive. The M’Bodj
judgment might therefore have implications for these laws too. But the rule
doesn’t apply to all EU immigration laws, and there’s no good reason to assume
that a ‘compatibility’ requirement ought to apply in those cases where the EU
legislature has deliberately decided not to insert one.

So what more favourable standards
can Member States apply? In the case
of the qualification Directive, the Court says that they must fall within the scope
of international protection. It doesn’t elaborate further, but this presumably refers
back to the key concept of persecution or serious harm caused by a ‘third party’.
Higher standards can therefore apply only in relation to the Directive’s
definition of ‘refugee’ and ‘subsidiary protection’. For instance, it should
surely be open to Member States to grant subsidiary protection to persons
fleeing indiscriminate violence even where the threat is not ‘individual’, or
where the applicants are not civilians.

Secondly, what are the implications
of the Abdida judgment for the new
possibility of ‘alternative protection’? To understand this concept better, it
should be compared to the elements of EU law governing international
protection: the allocation of responsibility for an application (ie, the ‘Dublin
rules’); the substantive grounds for protection; the procedures for determining
whether there is a protection need; and the benefits which an individual
receives during the determination process (and afterward, if his or her claim
is successful).

Beforehand, though, some general
points about the Court’s approach to the Returns Directive in Abdida. When it was initially adopted back in 2008,
that Directive was castigated by NGOs as the Devil incarnate, spurring on
Member States to all sorts of inhumane treatment of irregular migrants. Over
the years, the CJEU’s interpretation of the Directive has (generally speaking) ensured
that irregular migrants are better treated than the Directive’s initial critics
thought that they would be. The judgment in Abdida
goes even beyond this, and transforms an instrument of repression into (in some
cases) an instrument for protection. It’s like going into a vegetarian
restaurant, and being served a bacon sandwich.

For meat-eaters – with the
obvious exception of Ed Miliband – that would be a pleasant surprise. So what’s
the problem? The problem is that it’s difficult to take a law that was drafted
to expedite the removal of migrants, and using it to help them instead. The
CJEU tried to overcome this in the Abdida
judgment by performing a series of feats of legal alchemy: redrafting the national
court’s questions from scratch; turning an obligation to ‘take due account’ of non-refoulement
into a ban on removal; making an option to grant the suspensive effect of
appeals into an obligation; transforming the ‘principle’ of obtaining health
care into a rule; and adding social assistance to the list of benefits which
Mr. Abdida has to receive. Yet despite
all this, a lot of effort will still be required to make the Returns Directive
function as an instrument to grant individual protection.

To see why, let’s look at those
elements of the protection process, starting with the allocation of responsibility for an application. There are no
‘Dublin rules’ applicable to alternative protection cases. So if Paddington Bear
managed to make his way to Brussels or Paris, Belgium or France could not
invoke formal rules requiring the UK to take him back. The position would be
different though, if he had applied for asylum in the UK first, before making
his way to another Member State. In that case, the Dublin rules would apply, so
in principle the UK would have responsibility for him, since he crossed the UK
borders without authorisation before he set foot in any other Member State. But
this normal rule would have to be disapplied in his case, since unaccompanied
minors can usually change the country which is responsible for their
application (see the discussion here).

In fact, in real life, most of
those using the ‘alternative protection’ route would likely have applied for
asylum first (as is evident from the facts of the Abdida and M’Bodj cases),
so the Dublin rules as such would apply to them. According to the CJEU, they
could therefore only resist being sent back to the responsible Member State if
there is a complete breakdown of the asylum system there. For Paddington, the
demented attentions of Nicole Kidman’s character, or the grim reality of
British immigration law as described in Colin Yeo’s blog post, would not meet
that threshold.

Next, what are the substantive grounds for alternative
protection? We know from the Abdida
case that they include at least non-refoulement, and crucially also that the
concept of non-refoulement in the Returns Directive and the Charter is
wider than the concept of international protection. It covers at
least ‘medical cases’, and arguably also other cases that fall outside the
scope of refugee and subsidiary protection status but within the scope of
Article 3 ECHR (for instance, persons excluded from refugee status or
subsidiary protection status). It could also be argued that it covers
environmental cases, such as the fictional destruction of talking bears’
habitat, or the very real scenario of sinking islands. Article 5 of the Returns
Directive also refers to the best interests of the child, the state of health
of the person concerned and family life, so logically these could also
potentially be grounds for alternative protection. But it’s not possible to
claim alternative protection on the basis only that it’s impossible to carry
out a return decision in practice: se the Mahdi
decision earlier this year (discussed here).

Moving on to the procedures for determining
whether there is an alternative protection need, there are three elements here:
access to the process; administrative procedure; and judicial protection. There’s
an obvious problem with access to the process, for the Returns Directive cannot
be ‘accessed’ unless there is a pending returns decision. So we have the odd
scenario where people facing expulsion (Mr. Abdida) are better off in terms of
health care than those with residence permits (Mr. M’Bodj). The Returns
Directive requires Member States to issue return decisions to those whose stay
is not authorised, but it leaves them an option to allow people to stay if they
wish; in that case, the return decisions must be rescinded. Otherwise, the
Directive is silent on whether return decisions expire or can be renewed or
rescinded. There’s no provision for an individual to ask for a return decision to be issued, even where it’s possible
that it might make the person concerned better off.

Next, the administrative
procedure during the returns process has been addressed in the CJEU recent judgments
on the right to be heard in Returns Directive cases, discussed here. It’s
notable that the judgment in Boudjlida
specifically requires national authorities, before issuing a returns decision,
to consider any issues related to Article 5 of the Returns Directive. However,
on the whole the concept of the right to be heard in Returns Directive cases, as
developed by the Court is significantly weaker than the rules on interviews, et
al, set out in the asylum procedures directive.

Conversely, as for judicial
protection, the suspensive effect of removals set out in the Abdida case is stronger than the equivalent
provisions of the asylum procedures Directive. It’s not clear if this would
apply to other cases where an ‘alternative protection’ argument might be made
though. Article 13 of the Returns Directive also contains other rules, on: the
independence and impartiality of the appeals body (which actually need not be a
judicial body); requirement for a
merits review; access to legal advice; and legal aid. It might be arguable by
analogy with the suspensive effect point in Abdida,
that at least in some cases, Article 47 of the Charter confers stronger rights than
the Directive requires.

Finally, the benefits which an individual receives during the
determination process, if his or her removal is postponed, are (as noted above)
family unity, essential health care, education for minors, protection for
vulnerable persons, and written confirmation of their status. We know from the Abdida judgment that this list of
entitlements is not exhaustive, and can be extended to protection of basic
needs in individual cases. In that case, the CJEU implicitly accepted that there
would be no point providing health care for Mr. Abdida if, while he received
it, he was being left to starve to death in the streets. This is surely not the only type of case where
basic needs have to be provided for: should an unaccompanied minor be left
without food and shelter also?

What about the two provisos
mentioned by the Court: a means test, and Member States’ power to ‘determine
the form’ which provision of basic needs take? On the first point, it should be
noted that the employer sanctions Directive (discussed here) gives
Member States an option – but not an obligation – to permit irregular migrants
to take up employment. Possibly Member States could take into account other
income being provided by families, friends or charities. On the second point,
Member States’ discretion does not extend to an absolute power to detain the people
concerned, since the grounds for detention and conditions for detention set out
in the Returns Directive would apply. But as regards other aspects of basic
needs, Member States would surely be free to decide on the details of housing
and financial support. So sadly, Paddington Bear could not insist on staying
with Hugh Bonneville’s family – and would have to settle for marmalade from
Aldi, not Marks & Spencer’s.